DISTRICT COURT, ARAPAHOE COUNTY, COLORADO 7325 South Potomac Street Centennial, Colorado 80112 Plaintiff: BRANDON COATS

v. Defendant: DISH NETWORK L.L.C. Counsel for Defendant:

EFILED Document CO Arapahoe County District Court 18th JD Filing Date: Sep 20 2011 4:20PM MDT Filing ID: 39929013 Review Clerk: Linda Oliver

COURT USE ONLY

Case Number: 2011cv1464 Names: Meghan W. Martinez, #26295 Richard P. Barkley, #17161 Ann E. Christoff, #42032 BARKLEY MARTINEZ, P.C. 14426 East Evans Avenue Aurora, Colorado 80014 303.597.4000 303.597.4001 martinez@barmarlaw.com barkley@barmarlaw.com christoff@barmarlaw.com Division: 309

Address:

Phone Number: Fax Number: E-mail:

DISH NETWORK L.L.C.S MOTION TO DISMISS

Pursuant to Rule 12(b)(5) of the Colorado Rules of Civil Procedure, Defendant, DISH Network L.L.C. (DISH), through counsel, moves to dismiss the Complaint, and this Action, by Plaintiff, Brandon Coats (Coats). In support of this Motion, DISH states the following: INTRODUCTION This Action raises the issue of whether DISH has the right to prohibit its at-will employees from using medical marijuana outside of work, and to discharge at-will employees who test positive for marijuana in a drug test conducted by a certified testing laboratory. Although Coats does not contest that employers generally have a right to discharge employees for positive drug tests, he alleges that no such right extends to the use of "medical marijuana." His argument is as follows:

a.

Since the enactment of Article 18, 14 of the Colorado Constitution, the use of marijuana is "a legally permissible activity in the State if Colorado" (Compl. 12, 50), so long as (i) a doctor provides a written statement that the patient suffers from a debilitating medical condition that might benefit from the medical use of marijuana; and (ii) the patient complies with or meets the other requirements set out in Article 18, 14 and its implementing legislation. Coats has complied with, or met, the requirements for the legal use of marijuana under Article 18, 14. Thus, his use of "medical marijuana" is not "illegal" in Colorado. Because Coats' use of marijuana is legal in Colorado, the "legal off-duty conduct statute," C.R.S. 23-34-402.5, prohibits DISH from terminating Coats employment due to his off-the-premises use of medical marijuana. See id.

b.

c.

Coats argument is fundamentally flawed. First, and most obviously, under federal law the use of marijuana, medical or otherwise, remains illegal in Colorado, regardless whether the use is consistent with Colo. Const. Article 18, 14. Thus C.R.S. 23-34-402.5 which applies only to lawful off-duty conduct is inapplicable to Coats' use of marijuana. Second, Article 18, 14 itself as well as judicial decisions in Colorado and elsewhere make it clear that "medical marijuana" provisions do not address or alter the at-will employment relationship. Third, a ruling that employees working in Colorado could not be discharged for testing positive for Tetrahydrocannabinol ("THC"), the psychoactive ingredient in marijuana, would lead to havoc and substantial disruption within the business community. Accordingly, DISH requests the Court to rule that as a matter of law DISHs discharge of Coats does not give rise to liability. RELEVANT ALLEGATIONS For purposes of this Motion only, DISH does not contest the following allegations in the Complaint: 1. In July 2007, DISH employed Coats as an at-will1 employee, working full-time as a customer service representative for DISH. In that capacity, Coats answered telephone calls placed to DISH. (Compl. 9.) 2. On or about August 27, 2009, Coats was placed on the Medical Marijuana Registry, based on the certification by a physician that he was "a person who has a debilitating medical condition that the patient may address with the medical use of marijuana." (Id. 14; id., Ex. 3.) Colorado presumes that an employment agreement for an indefinite term establishes an at-will relationship. See, e.g., Slaughter v. John Elway Dodge Southwest/AutoNation, 107 P.3d 1165, 167-68 (Colo. Ct. App. 2005). Because Coats complaint contains no allegations about his employment status, this presumption requires the Court to deem Coats to be an at-will employee. 2
1

3. Coats' use of medical marijuana was limited to use at his home. Coats never used marijuana during his working hours or on DISHs premises. (Id. 16-17.) 4. On May 21, 2010, Coats was required to submit to a random drug test. At that time, Coats disclosed to DISH, for the first time, that he used medical marijuana. (Id. 20-24.) 5. The results of Coats' drug test were positive for THC, the psychoactive ingredient in marijuana. Coats does not dispute that the positive test was correct. (Id. 27-28.) 6. Coats met on multiple occasions with DISH about the positive test. Coats stated that he plan[ned] to continue using marijuana and, thus, future drug tests by DISH would continue to render positive drug test results in the workplace. Consequently, [Coats] employment with DISH was terminated on June 7, 2010. (Id. Ex. 4.) ARGUMENT I. ALL MARIJUANA USE IN COLORADO IS ILLEGAL UNDER FEDERAL LAW, AND THUS C.R.S. 23-34-402.5 DOES NOT APPLY TO COATS OFF-DUTY USE OF MARIJUANA.

Coats alleges that the termination of his employment because of his off-duty use of medical marijuana violated C.R.S. 23-34-402.5. That statutory provision -- entitled "Unlawful prohibition of legal activities as a condition of employment" (emphasis partially omitted) -states: "It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours .... Id. (emphasis added). For a violation of C.R.S. 23-34-402.5 to occur, therefore, the off-duty conduct for which employment was terminated must be legal. Id.; see Hearing on H. B. 1123 (Feb. 7, 1990) (hearing before the House on a Third Reading), Tape 1:035-0.40 (explanation by sponsor, Senator Mutzebaugh) ("This basically says that anything that's legal, you can do when you're not working."); Hearing on H. B. 1123 (Jan. 24, 1990) (hearing before the House Agriculture Committee), Tape 15:56-16:13 (statement of Representative Prinster) (I guess if it's legal and it's in your own time, you should be allowed to do that. I would hate for them to further restrict what I do.").2 And here, it is not. Coats' off-duty conduct of possessing and using medical marijuana was, and continues to be, illegal under the federal Controlled Substances Act, 28 U.S.C. 801 et seq. (the "CSA"). See 28 U.S.C. 812, Schedule I, (c)(10) (identifying marijuana as a Schedule The legislative history of C.R.S. 23-34-402.5 is oral, and is contained on copyrighted compact disks. The brief portions of legislative history cited in this Motion have been transcribed and are set forth in Ex. A. 3
2

I substance); 28 U.S.C. 844 (providing penalties of up to one year in federal prison, and up to a $100,000 fine for simple possession of marijuana); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005) (By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study.); Mark Eddy, Medical Marijuana: Review and Analysis of Federal and State Policies at 3 (Cong. Research Serv. Apr. 2, 2010) ("The CSA does not distinguish between the medical and recreational use of marijuana. Under federal statute, simple possession of marijuana for personal use, a misdemeanor, can bring up to one year in federal prison and up to a $100,000 fine for a first offense.") (excerpt attached as Ex. B). Accordingly, the plain language of C.R.S. 23-34-402.5, and its legislative history, show that the protections contained in the off-duty conduct statute did not extend to Coats' use of medical marijuana because using marijuana is an unlawful activity. A. Article 18, 14 Does Not Override the CSA and Make the Use of Medical Marijuana Legal.

To avoid this simple, straightforward analysis, Coats alleges without ever mentioning the CSA that his use of medical marijuana was legalized by the State of Colorado when its voters approved Article 18, 14. That cannot be. Although Colorado can create an affirmative defense to its state criminal laws for possession and use of medical marijuana as it did in Article 18, 14 Colorado lacks the power to abrogate federal law. See, e.g., Gonzales, 545 U.S. at 29 ("The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is 'superior to that of the States to provide for the welfare or necessities of their inhabitants,' however legitimate or dire those necessities may be."); see also Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3 518, 527-30 (Ore. 2010). As the Colorado Court of Appeals concluded just last month: Although Colorados medical marijuana provision may protect claimant from prosecution under Colorados criminal laws, as noted above the amendment has no bearing on federal laws, under which marijuana remains an illegal substance. See 21 U.S.C. 802, 812, 841. Beinor v. Indus. Claim Appeals Office, ___ P.3d ___, 2011 WL 3612226, at *7 (Colo. Ct. App. Aug. 18, 2011) (Ex. C); see also Ross v. Ragingwire Telecomms., Inc., 174 P.3d 200, 204 (Cal. 2008) (No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law even for medical users .) (citation omitted); Roe v. Teletech Customer Care Mgmnt. (Colo.) LLC, ___ P.3d ___, 2011 WL 2278472, at *11 (Wash. June 9, 2011) (Ex. D) (although Washington authorizes the medical use of marijuana, "Washington patients have no legal right to use marijuana under federal law"). Thus, although Article 18, 14 may have created an affirmative defense to Colorados criminal laws, it did not affect federal

law, which continues to make the possession and use of marijuana in Colorado illegal for all purposes.3 Moreover, the clear and unequivocal terms of Article 18, 14 show that the affirmative defense it creates against criminal liability applies only to state law criminal violations, and does not purport to alter federal law. Several provisions expressly limit themselves to Colorado criminal law. Article 18, 14(2)(a), for example -- the provision that creates an affirmative defense for medical marijuana -- limits the scope of Article 18, 14 by providing that "a patient or primary caregiver charged with a violation of the state's criminal laws related to the patient's medical use of marijuana will be deemed to have established an affirmative defense to such allegations where" certain conditions are met. (Emphasis added.) Other provisions similarly limit their scope to Colorado criminal law. See id. at 14(2)(a)(III) ("This affirmative defense shall not exclude the assertion of any other defense where a patient or primary caregiver is charged with a violation of state law related to the patient's medical use of marijuana.") (emphasis added); id. at 14(2)(b) ("exception from the state's criminal laws") (emphasis added); id. at 14(2)(c) (same); id. at 14(2)(e) (property interest in marijuana "shall not be forfeited under any provision of state law") (emphasis added). Thus, the affirmative defense, on its face, applies only to state law, and does not shelter a user of medical marijuana from federal criminal liability. See, e.g., Walsh Letter at 2. B. Nothing in C.R.S. 23-34-402.5 Can Be Construed As Requiring That the Conduct Only Be Legal Under Colorado State Law.

As shown above, C.R.S. 23-34-402.5 protects employees from being discharged for engaging in legal off-duty conduct; but it does not protect them from being discharged for engaging in illegal off-duty conduct. And conduct that is illegal under federal law is still illegal. In a futile attempt to avoid the result mandated by the undisputed fact that the possession and use of marijuana is illegal under federal law, Coats will likely argue that the words legal and lawful in C.R.S. 23-34-402.5 should be construed as legal under Colorado state law or lawful under Colorado state law. Any such argument fails, however, for two reasons. First, that is not what the off-duty conduct statute says. The plain language of C.R.S. 23-34-402.5 In correspondence to DISH, Coats argued that federal law did not preempt Article 18, 14. Although there is authority to the contrary, see Emerald Steel, 230 P.3 518 (Ore. 2010), Coats' characterization of the issue as one of federal preemption misstates it. DISH is not arguing that the CSA preempts Article 18, 14. Rather, Coats is arguing that Article 18, 14 preempts the CSA. According to Coats, when Article 18, 14 was approved by the voters, that approval had the effect of making medical marijuana legal. But if that were the case, Article 18, 14 would have had to override, eliminate, or take precedence over the CSA, which made all marijuana use and possession illegal. Because states lack the authority to override federal law, Coats' argument -- that Article 18, 14 made marijuana legal in Colorado -- fails. See Letter dated April 26, 2011, from U.S. Attorney John F. Walsh to Attorney General John Suthers at 2 ("Walsh Letter") (Ex. E) ("It is well settled that a State cannot authorize violations of federal law."). 5
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nowhere suggests or implies that its protections are triggered by an activity that is lawful under Colorado state law, but unlawful under federal law. Rather, the provision uses the word lawful without any limitation. Thus, the argument, if advanced, would ask the Court to add improperly the words "under Colorado state law" to C.R.S. 23-34-402.5, even though the statute nowhere contains those words. See Beinor, ___ P.3d at ___, 2011 WL 3612226, at *7 ("When interpreting constitutional provisions enacted by voter referendum, ... we [cannot] add or subtract language from the express words of the amendment."); People v. Jaramillo, 183 P.3d 665, 671 (Colo. Ct. App. 2008) ("[W]e respect the legislature's choice of language, and do not add words to the statute or subtract words from it.) (quoting Turbyne v. People, 151 P. 3d 563, 568, 567 ( Colo. 2007)). Second, such an argument ignores the fact that Article 18, 14 does not make medical marijuana legal, even under Colorado law. Rather, it creates an affirmative defense that bars the State from obtaining a criminal conviction against a patient who possesses and uses marijuana in compliance with the requirements set forth in Article 18, 14. See Article 18, 14(2)(a) (describing the provision as creating an affirmative defense); id. 14(2)(a)(III) ("affirmative defense"); id. 14(2)(b) ("exception"); id. 14(2)(c) ("exception"); 14(4)(b) ("affirmative defense"); see also Colorado Legislative Council, Reasearch Pub. No. 475-6, An Analysis of the 2000 Statewide Ballot Proposals 35 (the Bluebook) (Ballot Title describes the medical marijuana amendment as "authorizing the medical use of marijuana for persons suffering from debilitating medical conditions, and in connection therewith, establishing an affirmative defense to Colorado criminal laws for patients and their primary care-givers relating to the medical use of marijuana; establishing exceptions to Colorado criminal laws ....") (excerpt attached as Ex. F); Applicability of State Sales Tax to the Purchase and Sale of Medical Marijuana, Colo. Att'y Gen. Formal Op. No. 0906, at 2 (Nov. 16, 2009) ("Attorney General Opinion") ("Amendment 20 provides certain protections from state criminal liability for qualifying patients and primary caregivers ....") (Ex. G); C.R.S. 18-18-406.3(1)(b) ("The general assembly hereby finds and declares that: ... Section 14 of article XVIII of the state constitution creates limited exceptions to the criminal laws of this state for patients, primary care givers, and physicians concerning the medical use of marijuana by a patient to alleviate an appropriately diagnosed debilitating medical condition ...."); Walsh Letter at 2 n.1 ("As passed by Colorado voters in 2000, ... the Amendment authorized a medical marijuana 'affirmative defense' to state criminal prosecution for possession of marijuana."). As the Beinor Court concluded: "[T]he General Assembly understood Colorado's medical marijuana amendment to have created an exception to criminal prosecution, and not to be a grant to medical marijuana users of an unlimited constitutional right to use the drug in any place or in any manner." ___ P.3d at ___, 2011 WL 3612226, at *7. Creating an affirmative defense to an activity, and making the activity legal, are quite different. As the Second Circuit Court of Appeals explained in Aparicio v. Artuz, 269 F.3d 78, 98 (2d Cir. 2001): Affirmative defenses are complete defenses that, once proven by the defendant by a preponderance of the evidence, negate criminal liability for an offense, 6

notwithstanding that the State has otherwise proven all the elements of that offense beyond a reasonable doubt. A few critical distinctions must be noted: First, the burden of proof for all affirmative defenses lies squarely with the defendant. Second, affirmative defenses need be proven only by a preponderance of the evidence; elements must be proven beyond a reasonable doubt. Third, and most importantly, unless the defendant asserts the affirmative defense, the State need not negate it to obtain a conviction; it is not one of the facts upon which criminal liability is predicated. (Internal citations omitted) (emphasis added.) See also United States v. Davenport, 519 F.3d 940, 945 (9th Cir. 2008). In other words, if possession and use of marijuana were legal, Coats could not be subjected to criminal penalties for possessing and using the drug. Period. If an affirmative defense existed that created an exception to criminal liability for medical marijuana, Coats could still be subjected to criminal penalties for possessing or using marijuana if he failed to show that he satisfied all of the criteria of, and thus was entitled to protection from criminal liability under, Article 18, 14. Therefore, although Article 18, 14 may protect a user of medical marijuana from criminal penalties, it does not legalize the drug. As proponents of medical marijuana argued in supporting Californias medical marijuana initiative, [p]olice officers can still arrest anyone for marijuana offenses. Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctors approval. Ragingwire, 174 P.3d at 206 (citation omitted). II. ARTICLE 18, 14 DID NOT ALTER COATS' AT-WILL EMPLOYMENT RELATIONSHIP WITH DISH. The purpose of Article 18, 14 is as follows: [Article 18, 14] creates limited exceptions to the criminal laws of this state for patients, primary care givers, and physicians concerning the medical use of marijuana by a patient to alleviate an appropriately diagnosed debilitating medical condition .... C.R.S. 1818406.3(1)(b) (quoted in Beinor, ___ P.3d at___, 2011 WL 3612226, at *6). As such, the passage of Article 18, 14 did not alter, or purport to alter, the relationship between employers and employees. In fact, the only section in Article 18, 14 that even refers to employment is Article 18, 14(10)(b), which states: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." (Emphasis added.) Thus, the sole reference to employment in Article 18, 14 disavows any intent to alter the employer-employee relationship, including the right of employers to discharge at-will employees who test positive for marijuana (or other drugs). Likewise, the sole discussion of employment in the Bluebook is as follows: "Employers are not required to allow the medical use of marijuana in the workplace." Thus, neither the Bluebook for Article 18, 14, nor Article 18, 7

14 itself, suggests or hints that its passage would alter the employer-employee relationship. This silence is telling. As the California Supreme Court found, Given the controversy that would inevitably have attended a legislative proposal to require employers to accommodate marijuana use, we do not believe [that the statutory provision] can reasonably be understood as adopting such a requirement silently and without debate. Ross, 174 P.3d at 207; see also Casias v. WalMart Stores, Inc., 764 F. Supp. 914, 922 (W.D. Mich. 2011) (In contrast to what the MMMA [Michigan Medical Marijuana Act] does address potential state prosecution or other adverse state action the MMMA says nothing about private employment rights. Nowhere does the MMMA state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside the workplace.). A. The Argument That Article 18, 14(10)(b) Implicitly Mandates Accommodations for Off-Site Medical Marijuana Use Has Been Rejected Uniformly by Other Courts.

In response, Coats may argue -- as plaintiffs in other "medical marijuana" cases have argued with respect to similar provisions -- that Article 18, 14(10)(b) only concerns the use of marijuana in the work place, and does not implicate the use of "medical marijuana" outside the work place. As a result, thr argument goes, because 14(10)(b) expressly permits employers to regulate the medical use of marijuana "in any work place," the provision should be construed as implicitly prohibiting employers from regulating the medical use of marijuana outside the work place. But courts have unanimously rejected the interpretation advanced by Coats.4 For example, in Roe, the plaintiff argued that because the state of Washington's medical marijuana law explicitly did not require an employer to accommodate the on-site medical use of marijuana in any place of employment, the statute implicitly requires an employer to accommodate an employee's medical marijuana use outside the workplace. The Washington Supreme Court disagreed: [T]he statute's explicit statement against an obligation to accommodate onsite use does not require reading into [Washington's medical marijuana law] an implicit obligation to accommodate off-site medical marijuana use. The language of [Washington's medical marijuana law] MUMA is unambiguousit does not regulate the conduct of a private employer or protect an employee from being discharged because of authorized medical marijuana use.

Several courts have also recognized the logical fallacy inherent in this argument. See, e.g., Roe, ___ P.3d at ___, 2011 WL 2278472, at *4 n.4. A more exhaustive explanation of the logical flaws is set forth in pages 11-13 of the Amicus Curiae Brief, filed by the Pacific Legal Foundation in Roe (Amicus Brief). (For the convenience of the Court, a copy of the Amicus Brief is attached as Ex. H.) 8

Roe, ___ P.3d at ___, 2011 WL 2278472, at *4 n.4; see also id. at *10. The California Supreme Court likewise rejected the argument that similar statutory language -- "Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment" -- meant that off-premises accommodations were required. Ross, 174 P.3d at 207. This language, the court found, "can be given literal effect as negating any expectation that the immunity to criminal liability for possessing marijuana gives medical [marijuana] users a civilly enforceable right to possess the drug at work ...." Id. The same is true here. The fact that the language of Article 18, 14(10)(b) -- "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place" -- explicitly speaks to one issue does not mean that it also speaks implicitly -- or more accurately, silently -- to a different issue. Otherwise, Article 18, 14(10)(b)'s silence could be construed to allow medical marijuana patients to use medical marijuana in a myriad of unintended circumstances. For example, if Article 18, 14(10)(b) were interpreted as requiring accommodation of medical marijuana except for using marijuana in the workplace -- as Coats appears to argue -- Colorado employers could not discharge truck drivers, airplane pilots, hospital nurses and doctors, fire fighters, police officers, and a host of other, similarly situated employees whose jobs require them to be clear-headed and alert at all times. Likewise, because Article 18, 14, is silent about the right to prohibit a medical marijuana user from ingesting marijuana under certain circumstances, Coats' interpretation of Article 18, 14(10)(b) would mean that businesses could not prevent medical marijuana users from smoking marijuana in hotel rooms where they are staying (even if the room is a nonsmoking room). Patients in a private hospital room could use marijuana, regardless of whether smoking was permitted. Indeed, as absurd as it sounds, an operator of a jail would not be allowed to prevent a prisoner in jail from smoking medical marijuana. These examples, and many others, demonstrate that Article 18, 14(10)(b) means what it says, and only what it says: "An employer is not required to accommodate the medical use of marijuana in any work place." Colorado appellate courts have not yet ruled on the issue of whether Article 18, 14(10)(b) should be construed as implicitly requiring employers to accommodate off-site use of marijuana. In Beinor, however, the Colorado Court of Appeals stated: We are not deciding whether the amendment limits an employer from discharging an employee for using medical marijuana. Nonetheless, we note that in the context of wrongful termination cases, language similar to section 14(10)(b) has been interpreted not to require employers to accommodate employees off-site use of medical marijuana. ___ P.3d at ___, 2011 WL 2278472, at *7. Thus, the Colorado Court of Appeals has recognized in dicta that courts have ruled that Article 18, 14 does not require employers to accommodate employers who use medical marijuana off-site. 9

B.

If Article 18, 14(10)(b) Is Construed as Mandating Accommodations for Off-Site Medical Marijuana Use, the Provision Would Have Violated the Single Subject Rule.

The Colorado Constitution forbids initiatives that contain more than a single subject, and it requires that the single subject be "clearly" expressed in the title of the bill. Colo. Const., Art. V, 1(5.5)5; see In re Title, Ballot Title, Submission Clause for 2007-2008 #62, 184 P.3d 52, 56 (Colo. 2008) ("[T]wo closely interdependent inquiries are germane to our review of a proposed initiative: one forbidding the union of separate and distinct subjects in the same proposed initiative, and the other commanding that the single subject treated in the body of the proposed initiative shall be clearly expressed in its titles."). "The purpose behind this constitutional singlesubject requirement is simple: it seeks 'to prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters.'" Id. at 57. Here, if Article 18, 14 were construed as Coats argues -- to alter the law by creating a constitutional right to an accommodation by employers to employees who used medical marijuana off-duty -- Article 18, 14 would fail both "interdependent inquiries." First, as shown previously the purpose of the proposed constitutional provision was to create an affirmative defense that prohibits the State from obtaining a criminal conviction against a patient who possesses and uses marijuana in compliance with the requirements set forth in Article 18, 14. (Mot. at 7.) That subject -- protecting a medical marijuana user from criminal prosecution by the state government -- on its face is wholly different and distinct from protecting a medical marijuana user from having his at-will employment terminated by a private employer. One involves the government, the other concerns private and public employers. One involves criminal penalties, the other adverse employment action. And one implicates the express terms of the initiative while the other is nowhere found in the language of the initiative. Accordingly, Coats' interpretation of Article 18, 14 would mean that it unconstitutionally combined two unrelated subjects into one initiative. See, e.g., In re Title, Ballot Title, Submission Clause for 2009-2010 No. 91, 235 P.3d 1071, 1077 (Colo. 2010). Second, the purported employment accommodation is not clearly expressed in the initiative's title. As can be seen from the Bluebook, which sets out the full title of the initiative, nowhere does it mention anything about an accommodation by employers for employees who use medical marijuana. (See Bluebook at 35 (giving full title of the initiative).) To the contrary, the title's sole reference to employment is its last clause, which states that the amendment "provid[es] that no employer must accommodate medical use of marijuana in the workplace." Id. This does not suggest that an employer must accommodate the medical use of marijuana by its employees. It suggests just the opposite. Accordingly, if Coats' interpretation were correct, the Bluebook would not "clearly express" the accommodation argued for by Coats. Instead, it These requirements for initiatives are contained in Article V, 1(5.5), which provides in pertinent part: "No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title ...." 10
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would permit "surreptitious measures," would fail to "apprise the people of the subject of each measure by the title," and would allow proponents of initiatives to promote "surprise and fraud from being practiced upon voters.'" In re Title #62, 184 P.3d at 57. Numerous appellate decisions recognize that courts: "have an 'obligation to avoid interpretations that invoke constitutional deficiencies.' Catholic Health Initiatives Colorado v. City of Pueblo, 207 P.3d 812, 822 ( Colo. 2009) (internal quotations omitted); see also Colorado Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061, 1065 (Colo.App.2002). Thus, [w]hen possible, statutes are to be construed in such manner as to avoid questions of their constitutional validity. People v. Thomas, 867 P.2d 880, 883 (Colo.1994); see also Buckley v. Chilcutt, 968 P.2d 112, 116 (Colo.1998). Hence, even if ours is not the only plausible interpretation, this principle disfavors the interpretation of section 2450104(5)(c) ..., which would require us to address possible constitutional infirmities. Kirkmeyer v. Dep't of Local Affairs, ___ P.3d ___, 2011 WL 1168289, at *7 (Colo. Ct. App. Mar. 31, 2011). Thus, the Court should rule that Article 18, 14 does not impose an obligation on an employer to accommodate an employees' off-duty use of medical marijuana. III. DENYING EMPLOYERS THE RIGHT TO DISCHARGE EMPLOYEES WHO TEST POSITIVE FOR MARIJUANA WOULD IMPROPERLY INTERFERE WITH BUSINESSES.

Courts should not interpret documents in such a way that they achieve absurd results. Watson v. Pub. Serv. Co. of Colo., 207 P.3d 860, 864 (Colo. Ct. App. 2008). Additionally, courts "do not sit as a super-personnel department that reexamines an entity's business decisions." E.g., Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (citations omitted). Here, adoption of the position advanced by Coats would violate both of those fundamental principles. To begin with, although Coats alleges in his Complaint that [t]here is no evidence available that supports Mr. Coats ever being under the influence at work (Compl. 55), his carefully phrased allegation does not allege that Coats has never been under the influence at work. Nor could he; no standard exists in Colorado for determining the level at which a user becomes under the influence or intoxicated. (See Scott Harrison, AG Blasts Lawmaker Over Failed Marijuana Driving Bill, located at http:www.krdo.com/news/27846464/ detail.html.) Thus, it is not possible to say whether Coats was, or was not, under the influence or intoxicated. Moreover, the issue of the level of intoxication is a red herring. According to Coats, C.R.S. 23-34-402.5 and Article 18, 14, together or separately, preclude employment termination for all off-site medical marijuana use. Thus, the level of THC in the bloodstream of a medical marijuana user would not be relevant in determining whether the employee could be 11

discharged. The only medical marijuana users who could be discharged would be those who ingested medical marijuana while at work. Coats' argument therefore would achieve the absurd result of precluding termination of employment for employees who used medical marijuana offsite, and then came to work in an impaired or intoxicated condition. But this is not the only absurd business result that would arise from interpreting C.R.S. 23-34-402.5 and Article 18, 14, to preclude employment termination for off-site medical marijuana use. Because medical marijuana remains illegal under federal law, for example, an employer that contracts with the federal government must comply with Drug-Free Workplace requirements (and the requirements of other agencies). These Drug-Free Workplace requirements are inconsistent with the policy of drug use accommodation advanced by Coats. See, e.g., Amicus Br. at *4-5; Deborah J. La Fetra, Medical Marijuana and the Limits of the Compassionate Use Act: Ross v. Raging-Wire Telecommunications, 12 Chap. L. Rev. 71, 73-75 (Summer 2008). Accordingly, employers with federal contracts would have the Hobson's choice either of abandoning federal contract work or not providing an accommodation for medical marijuana users. Moreover, if Colorado mandated that businesses could not discharge an employee for using medical marijuana outside the workplace, it would interfere significantly with the rights of employers to select the employees who work for them. Numerous medical authorities have identified problems associated with the use of marijuana. As the Pacific Legal Foundation's Amicus Brief summarized: People who smoke marijuana frequently, but do not smoke tobacco, have more health problems and miss more days of workman nonsmokers. Many of these extra sick days are due to respiratory illnesses. Marijuana compromises the ability to learn and remember information, so that a user's intellectual, job performance, or social skills are more likely to diminish. Other studies also associate marijuana smoking with increased absences, tardiness, accidents, workers' compensation claims, and job turnover. For example, [a] study among postal workers found that employees who tested positive for marijuana on a preemployment urine drug test had 55 percent more industrial accidents, 85 percent more injuries, and a 75 percent increase in absenteeism compared with those who tested negative for marijuana use. These studies and others mentioned in the Postal Service report thus confirm what one would expect--an extremely high correlation between a positive result in a pre-employment drug test and subsequent employment problems. A recent study by the United States Department of Health and Human Services found that, for workers who admitted ingesting marijuana within the past month, 13.1% worked for three or more employers in the past year; 16.1% missed two or more days of work in the past month due to illness or injury; and 16.9% skipped one or more days of work in the past month. For those workers who did not use marijuana in the past month, only 5.2% worked for three or more employers in the past year; 11.2% missed two or more days of work in the past month due to illness or injury; and 8.3% skipped one or more days of work in the 12

past month. Id. The most dramatic findings, therefore, relate to a marijuana user's ability to maintain consistency in his employment, both in staying with one employer for more than a few months and actually showing up for work. Amicus Brief at *7-10 (citations omitted). The medical evidence summarized in the Amicus Brief, in other words, provides a compelling basis for employers to discharge employees who test positive for marijuana use. To rule that employers cannot make such employment decisions based on the use of positive drug tests for marijuana is contrary to the rules that (a) courts do not ... second-guess the business judgment of employers, Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997); and (b) courts are not in the business of adjudging whether employment decisions are prudent or fair. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). CONCLUSION DISH requests the Court to rule that DISH had no duty to accommodate Coats' off-duty use of medical marijuana, and to dismiss with prejudice Coates complaint, and this action. Respectfully submitted this 20th day of September, 2011. BARKLEY MARTINEZ, P.C.

s/Richard P. Barkley Richard P. Barkley, #17161 ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE I hereby certify that on this 20th day of September, 2011, I served a true and correct copy of the foregoing DISH NETWORK L.L.C.S MOTION TO DISMISS by Lexis/Nexis File & Serve: Michael D. Evans, Esq. Benson & Case, LLP 1660 So. Albion Street, Suite 1100 Denver, Colorado 80222

/s/ Beth Reinhardt Beth Reinhardt, paralegal

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